Hinchliff v. Rudnik , 212 Ill. 569 ( 1904 )

Mr. Justice Magruder

delivered the opinion of the court:

In this case no errors are assigned as to the giving or refusal of instructions, or the admission or exclusion of evidence, except the refusal of a written instruction asked of the court, requiring the jury to find for the defendant for the reason hereinafter stated.

Inasmuch as three juries have found the facts the same way, it seems to be eminently proper that there should be an end of the controversy so far as the facts are concerned. (Parmly v. Farrar, 204 Ill. 38, and cases there cited).

The contention of the plaintiff in error is that the declaration, filed on April 7, 1893, did not state a cause of action, and that the additional counts, filed on December n, 1899, were filed after the Statute of Limitations had barred recovery on the cause of action stated therein.

Section 25 of the Limitation act provides that, in any of the actions specified therein, “if the plaintiff be non-suited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, his or her heirs, executors or administrators, as the case' shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.” (2 Starr & Cur. Ann. Stat.—2d ed.—pp. 2642, 2643). It has been held that this statute does not apply to voluntary non-suits. (Holmes v. Chicago and Alton Railroad Co. 94 Ill. 439). It appears from the statement of the facts preceding this opinion, that an involuntary non-suit was entered against defendant in error, but that, within a year after such non-suit, to-wit, on March 29, 1893, a second suit-was begun and the declaration filed therein on April 7, 1893. It is not contended by counsel for plaintiff in error in the argument filed, that a cause of action is not sufficiently stated in the additional counts, filed on December 11, 1899. 'The only objection, made to such additional counts, is based upon the claim that they were filed qfter the Statute of Limitations had barred a recovery on the cause of action therein stated. It is true that, at the time the additional counts were filed on December 11, 1899, more than two years had elapsed since the accident took place. Therefore, if the declaration, filed on April 7, 1893, failed to state a cause of action, and by the additional counts, or amendments, filed on December 11, 1899, a new cause of action was sought to be introduced, the same was barred, and the plea of the Statute of Limitations thereto should have been sustained. (Foster v. St. Luke’s Hospital, 191 Ill. 94; Schueler v. Mueller, 193 id. 402). The material question, then, is, did the declaration filed on April 7, 1893, state a cause of action? If the latter declaration merely stated a cause of action defectively, the cause of action, stated in the additional counts, is not barred by the Statute of Limitations, such additional counts being but a re-statement of the cause of action set out in the declaration filed on April 7, 1893; and the running of the Statute of Limitations was arrested by the commencement of the suit on August 15, 1887, and of the second suit on March 29, 1893, within one year from the date of the non-suit entered in the action first commenced. (Chicago, Burlington and Quincy Railroad Co. v. Jones, 149 Ill. 361; Swift & Co. v. Madden, 165 id. 41).

As we understand the argument of counsel for plaintiff in error, it is conceded that the objection to the declaration of April 7, 1893, is that “it fails to state with certainty a cause of action.” The declaration, filed April 7, 1893, is said to be “faulty because it is uncertain.” The fault, thus found with the declaration of April 7, 1893, is one which, under the common law practice and the statutes of the State, should be availed of by special demurrer, and is cured by verdict. “The want of a certainty and an ambiguous expression in a declaration are cured by verdict.” (1 Chitty’s Pl. marg. p. 236). “It may here suffice to observe that the want of sufficient certainty is generally aided by verdict at common law.” (1 Chitty’s Pl. marg. p. 261). Where no title or ground of action is set out, the declaration will not be aided by verdict, but where a declaration or other pleading sets forth a good title or ground of action defectively, it will be cured by verdict. (1 Chitty’s Pl. marg. p. 673). “Where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer; yet, if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission, is cured by the verdict.” (1 Chitty’s Pl. marg. p. 673). “In general, uncertainty is only a matter of form and * * * will consequently be aided * * * after verdict * * * by the statutes of jeofails.” (i Chitty’s PL marg. p. 677). Clauses 5 and 9 of section 6 of the act in relation to amendments and jeofails provide that no judgment shall be arrested or stayed after verdict and no judgment upon verdict shall be reversed “for any mispleading, insufficient pleading,” etc., or “for the want of any allegation or averment on account of which omission a special demurrer could have been maintained.” (1 Starr & Cur. Ann. Stat.—2d ed.—p. 390).

Therefore, it appearing here that the objection, made to the declaration, is that it “fails to state with certainty a cause of action,” and not that it fails to state any cause of action at all, it follows that the present judgment cannot be reversed on account of such defect. There is here merely a defective statement of a cause of action, and not a statement of a defective cause of action, and, while the latter will not be assisted by verdict, the former is always aided by the verdict of the jury. (Chicago and Alton Railroad Co. v. Clausen, 173 Ill. 100; Chicago City Railway Co. v. Jennings, 157 id. 274 ; Cribben v. Callaghan, 156 id. 549; Chicago and Eastern Illinois Railroad Co. v. Hines, 132 id. 161; Joliet Steel Co. v. Shields, 134 id. 209; Keegan v. Kinnare, 123 id. 280).

It is said that the declaration, filed on April 7, 1893, does not state a cause of action, because it is in the alternative and disjunctive form, and does not allege material facts, from which it can be inferred that there is any liability on the part of plaintiff in error, and because it does not allege that the defendant in error was in the employment of the plaintiff in error, or that he was in the position where he was injured by the direction of the plaintiff in error; and because it does not allege that the alleged dangerous conditions were known to the plaintiff in error, or ought to have been known by him. It is unnecessary for us to set out and comment upon all the different allegations of the declaration, filed April 7, 1893, for the purpose of showing that it is not subject to the objections here urged against it. Such a course would swell this opinion to an inordinate length. It is sufficient to say that, ■after a careful examination of the declaration in question, we are of the opinion that, although it may have been held to have been defective upon demurrer, yet the defects alleged against it are not of such a character that they were not cured by the verdict. It has been held by this court that, “if the declaration contains terms sufficiently general to comprehend, by fair and reasonable intendment, any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the want of an express statement of it in the declaration is cured by the verdict.” (Chicago and Alton Railroad Co. v. Clausen, supra). 'In the declaration here under consideration, while it may have been justly subject to demurrer for the want of an express statement of the matters referred to in the objections of counsel, yet it contains terms sufficiently general to comprehend, by fair and reasonable intendment, such matter's, embraced within the scope of the objections, as it was necessary for the defendant in error to prove. Consequently, we concur in the following statement, made by the Appellate Court in their opinion deciding this case, to-wit: “There is a manifest difference between not stating any cause of action and not stating a cause of action with certainty. We have examined the original declaration, and are of the opinion that it states a cause of action, and that there are no defects in it insusceptible of cure by verdict.—Illinois Central Railroad Co. v. Simmons, 38 Ill. 242; Toledo, Peoria and Warsaw Railway Co. v. McClannon, 41 id. 238; Demesmey v. Gravelin, 56 id. 93; Barker v. Koozier, 80 id. 205.”

One of the defenses, interposed by plaintiff in error, was that some time in the afternoon of December 4, 1886, the People’s Gas Light and Coke Company had sent its teams to the place where the accident occurred, and was engaged in hauling cement and material, intending to stop plaintiff in error and his partner from completing tire work, and that the wagon used at the time to draw the load of cement, which was brought down the slant from the top of the hill by the use of the iron pipe as a brake, was a wagon, belonging to the gas company, and in charge of one of its employes, and that, therefore, the plaintiff in error was not liable. This was a question of fact, which was submitted to the jury by proper instructions, and has been found against plaintiff in error. It is not subject to review by this court. In addition to this, counsel in his brief does not discuss this point as it was discussed in the brief before the Appellate Court, and it is, therefore, to be assumed that it has been abandoned in this court.

Something is said in the brief of plaintiff in error to the effect that the decision of the Appellate Court, reversing the judgment and remanding the cause in May, 1897, was conclusive upon that court, and that, therefore, it was error both in the circuit court and the Appellate Court afterwards to disregard such decision. This objection proceeds upon the assumption that the Appellate Court decided, that the declaration of April 7, 1893, did not state any cause of action. But the decision of the Appellate Court was merely that the declaration in question failed to state a cause of action with certainty. For this reason, the point as to the alleged conclusiveness of the first decision of the Appellate Court is not well taken.

After a careful examination of the record in this suit, which* has now been pending in the courts of this State for more than seventeen years, we see no good reason for reversing the judgments of the lower courts.

Accordingly, the judgment of the Appellate Court is affirmed.

Judgment affirmed.